CRS Annotated Constitution

“Bills of attainder . . . are such special acts of the
legislature, as inflict capital punishments upon persons
supposed to be guilty of high offences, such as treason
and felony, without any conviction in the ordinary course
of judicial proceedings. If an act inflicts a milder
degree of punishment than death, it is called a bill of
pains and penalties. . . . In such cases, the legislature
assumes judicial magistracy, pronouncing upon the guilt of
the party without any of the common forms and guards of
trial, and satisfying itself with proofs, when such proofs
are within its reach, whether they are conformable to the
rules of evidence, or not. In short, in all such cases,
the legislature exercises the highest power of
sovereignty, and what may be properly deemed an
irresponsible despotic discretion, being governed solely
by what it deems political necessity or expediency, and
too often under the influence of unreasonable fears, or
unfounded suspicions.”1701 The phrase “bill of
attainder,” as used in this clause and in clause 1 of Sec.
10, applies to bills of pains and penalties as well as to
the traditional bills of attainder.1702

The prohibition embodied in this clause is not to be
strictly and narrowly construed in the context of
traditional forms but is to be interpreted in accordance
with the designs of the framers so as to preclude trial by
legislature, a violation of the separation of powers
concept.1703 The clause thus prohibits all
legislative acts, “no matter what their form, that apply
either to named individuals or to easily ascertainable
members of a group in such a way as to inflict punishment
on them without a judicial trial. . . .”1704
That the Court has applied the clause dynamically is
revealed by a consideration of the three cases in which
acts of Congress have been struck down as violating
it.1705 In Ex parte Garland,1706
the Court struck down a statute that required attorneys to
take an oath that they had taken no part in the
Confederate rebellion against the United States before
they could practice in federal courts. The statute, and a
state constitutional amendment requiring a similar oath of
per[p.348]sons before they could practice
certain professions,1707 were struck down as
legislative acts inflicting punishment on a specific group
the members of which had taken part in the rebellion and
therefore could not truthfully take the oath. The clause
then lay unused until 1946 when the Court utilized it to
strike down a rider to an appropriations bill forbidding
the use of money appropriated therein to pay the salaries
of three named persons whom the House of Representatives
wished discharged because they were deemed to be
“subversive.”1708

Then, in United States v. Brown,1709 a sharply
divided Court held void as a bill of attainder a statute
making it a crime for a member of the Communist Party to
serve as an officer or as an employee of a labor union.
Congress could, Chief Justice Warren wrote for the
majority, under its commerce power, protect the economy
from harm by enacting a prohibition generally applicable
to any person who commits certain acts or possesses
certain characteristics making him likely in Congress’
view to initiate political strikes or other harmful deeds
and leaving it to the courts to determine whether a
particular person committed the specified acts or
possessed the specified characteristics; it was
impermissible, however, for Congress to designate a class
of persons—members of the Communist Party—as being
forbidden to hold union office.1710 The
dissenters viewed the statute as merely expressing in
shorthand the characteristics of those persons who were
likely to utilize union responsibilities to accomplish
harmful acts; Congress could validly conclude that all
members of the Communist Party possessed those
characteristics.1711 The majority’s decision in
Brown cast in doubt certain statutes and certain statutory
formulations that had been held not to constitute bills of
attainder. For example, a predecessor of the statute
struck down in Brown, which had conditioned a union’s
access to the NLRB upon the filing of affidavits by all of
the union’s officers attesting that they were not members
of or affiliated with the Communist Party, had been
upheld,1712 and although Chief Justice
Warren distinguished the previous case from[p.349]Brown on the basis that the Court in the
previous decision had found the statute to be preventive
rather than punitive,1713 he then proceeded to
reject the contention that the punishment necessary for a
bill of attainder had to be punitive or retributive rather
than preventive,1714 thus undermining the prior
decision. Of much greater significance was the effect of
the Brown decision on “conflict–of– interest” legislation
typified by that upheld in Board of Governors v.
Agnew.1715 The statute there forbade any partner or
employee of a firm primarily engaged in underwriting
securities from being a director of a national
bank.1716 Chief Justice Warren distinguished the
prior decision and the statute on three grounds from the
statute then under consideration. First, the union statute
inflicted its deprivation upon the members of a suspect
political group in typical bill–of–attainder fashion,
unlike the statute in Agnew. Second, in the Agnew statute,
Congress did not express a judgment upon certain men or
members of a particular group; it rather concluded that
any man placed in the two positions would suffer a
temptation any man might yield to. Third, Congress
established in the Agnew statute an objective standard of
conduct expressed in shorthand, which precluded persons
from holding the two positions.

Apparently withdrawing from the Brown analysis in
upholding a statute providing for governmental custody of
documents and recordings accumulated during the tenure of
former President Nixon,1717 the Court set out a
rather different formula for deciding bill of attainder
cases.1718 The law specifically applied only to
President Nixon and directed an executive agency to assume
control over the materials and prepare regulations
providing for ultimate public dissemination of at least
some of them; the act assumed that it did not deprive the
former President of property rights but authorized the
award of just compensation if it should be judicially
determined that there was a taking. First, the
Court[p.350]denied that the clause denies
the power to Congress to burden some persons or groups
while not so treating all other plausible individuals or
groups; even the present law’s specificity in referring to
the former President by name and applying only to him did
not condemn the act because he “constituted a legitimate
class of one” on whom Congress could “fairly and
rationally” focus.1719 Second, even if the statute’s
specificity did bring it within the prohibition of the
clause, the lodging of Mr. Nixon’s materials with the GSA
did not inflict punishment within the meaning of the
clause. This analysis was a three– pronged one: 1) the law
imposed no punishment traditionally judged to be
prohibited by the clause; 2) the law, viewed functionally
in terms of the type and severity of burdens imposed,
could rationally be said to further nonpunitive
legislative purposes; and 3) the law had no legislative
record evincing a congressional intent to punish.1720
That is, the Court, looking “to its terms, to the intent
expressed by Members of Congress who voted its passage,
and to the existence or nonexistence of legitimate
explanations for its apparent effect,” concluded that the
statute served to further legitimate policies of
preserving the availability of evidence for criminal
trials and the functioning of the adversary legal system
and in promoting the preservation of records of historical
value, all in a way that did not and was not intended to
punish the former President.

The clause protects individual persons and groups who
are vulnerable to nonjudicial determinations of guilt and
does not apply to a State; neither does a State have
standing to invoke the clause for its citizens against the
Federal Government.1721

Definition.—At the time the Constitution was adopted, many persons
understood the term ex post facto laws to “embrace all
retrospective laws, or laws governing or controlling past
transactions, whether . . . of a civil or a criminal
nature.”1722 But in the early case of
Calder v. Bull,1723 the Supreme Court decided
that the phrase, as used in the Constitution, applied only
to penal and criminal statutes. But although it is
inapplicable to retroactive legislation of any other
kind,1724 the constitutional prohibition
may[p.351]not be evaded by giving a civil
form to a measure that is essentially criminal.1725
Every law, which makes criminal an act that was innocent
when done, or which inflicts a greater punishment than the
law annexed to the crime when committed, is an ex post
facto law within the prohibition of the
Constitution.1726 A prosecution under a
temporary statute, which was extended before the date
originally set for its expiration, does not offend this
provision even though it is instituted subsequent to the
extension of the statute’s duration for a violation
committed prior thereto.1727 Since this provision
has no application to crimes committed outside the
jurisdiction of the United States against the laws of a
foreign country, it is immaterial in extradition
proceedings whether the foreign law is ex post facto or
not.1728

Footnotes

1701
3 J. Story, Commentaries on the Constitution of the
United States (Boston: 1833), 1338.

1710
The Court of Appeals had voided the statute as an
infringement of First Amendment expression and
association rights, but the Court majority did not
choose to utilize this ground. 334 F. 2d 488 (9th Cir.,
1964). However, in United States v. Robel,
389 U.S. 258 (1967), a very similar
statute making it unlawful for any member of a
“Communist–action organization” to be employed in a
defense facility was struck down on First Amendment
grounds and the bill of attainder argument was
ignored.

1718
Nixon v. Administrator of General Services,
433 U.S. 425, 468–484 (1977). Justice
Stevens’ concurrence is more specifically directed to
the facts behind the statute than is the opinion of the
Court, id., 484, and Justice White, author of the
dissent in Brown, merely noted he found the act
nonpunitive. Id., 487. Chief Justice Burger and Justice
Rehnquist dissented. Id., 504, 536–545, 545. Adding to
the impression of a departure from Brown is the
quotation in the opinion of the Court at several points
of the Brown dissent, id., 470 n. 31, 471 n. 34, while
the dissent quoted and relied on the opinion of the
Court in Brown. Id., 538, 542.

1719
Id., 472. Justice Stevens carried the thought
further, although in the process he severely limited the
precedential value of the decision. Id., 484.